What is a Personal Representative?
According to s2 of the Probate and Administration Act 1959 (“PAA”), a personal representative (“PR”) means the executor or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes anyone who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the Court.
An executor is a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided and includes a person deemed to be appointed executor as respects settled land. They are expressly appointed by the testator and their duties are stated in the will.
On the other hand, an administrator is a person to whom administration is granted. They are appointed when a person dies intestate. Their authority is obtained through a letter of Administration from the High Court and their duties are stated in the court order.
Power Vested in a Personal Representative
1) Power to Sue
S59 PAA: Subject to any other written law, a PR has the same powers to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts due to him at the time of his death as the deceased had when living.
The PR has the power to sue anyone as long as there is a cause of action, has locus standi and to recover debt.
It should be noted that an executor can sue anyone at any time even before the grant of probate. However, they cannot obtain judgement until the Grant of Probate has been extracted because the production of Grant of Probate is the only way he can prove his title.
On the other hand, an administrator can only sue someone when the letter of administration is extracted. This is because administrator’s authority is derived from a Letter of Administraion (“LA”) as per s39(2) PAA. Besides that, when the LA has not been extracted, it is said that the administrator has no locus standi to commence a legal proceeding to someone else. As such, if there is no LA, the suit will be struck out.
2) Power to Dispose of Property
PR allow to sell or dispose the property of the deceased in order to pay the debt of the deceased.
S60(3) PAA allows a PR to charge, mortgage or dispose of any property vested in him, as he may think proper.
However, two conditions have to be met:
a) Concurrence of all the PR – as per s60(2) PAA no sale, transfer, conveyance/assent in respect of immovable property shall be made without the concurrence of all the PR of the deceased.
b) Permission of the Court – as per s60(4) PAA an administrator may not, without the previous permission of the Court mortgage, charge or transfer by sale, gift or exchange any immovable property for the time being vested in him; or lease any such property for a term exceeding 5 years.
3) Power to Assent
According to s72(1) PAA, a PR may assent to the vesting in any person who may be entitled (either as a trustee, beneficiary or PR) of any immovable property to which the testator or intestate was entitled or over which he exercised a general power of appointment by his will, and which devolved upon the PR. However, s72(2) PAA states that no such assent shall be valid unless sanctioned by an order of Court and made by a transfer in the form required by any written law relating to the registration of title to land.
4) Power to Appropriate
S74(1) PAA states that a PR may appropriate any part of the movable or immovable property of the deceased in the actual condition or state of investment towards the satisfaction of any legacy bequeathed by the deceased as to the PR may seem just and reasonable according to the respective rights of the persons interested in the property of the deceased.
5) Power to Enter or Rescind a Contract
In order to sell the property, the PR must enter into a sale and purchase agreement. Therefore, a PR has the authority to enter into a contract. The PR might also need to manage the contract after the testator’s death. If there is a need to terminate the contract, the PR has the power to do so. This is supported by s71(1) PAA whereby subject to s60, every contract entered by a PR in exercise of his powers of administering an estate shall be binding on and be enforceable against and by the PR and may be carried into effect or be varied or rescinded by him.
6) Power to Appoint Trustee for a Minor’s Property
According to s75(1) PAA, if there is a minor who is absolutely entitled (under the will/on the intestacy) to a devise or legacy, or to the residue of the estate of the deceased, or any share therein, and it is not been devised or bequeathed to trustees for the minor under a will, the PR may appoint a trust corporation or two or more individuals not exceeding 4 (may include the PR themself) to be the trustee of the devise, legacy, residue or share for the minor. Subject to s60, the PR may execute or do any assurance or thing requisite for vesting the devise, legacy, residue or share in the trustee so appointed.
In short, if an infant is a beneficiary, someone has to act on behalf of the infant. If the will did not appoint any trustee, the PR will appoint a trustee. The trustee may be a corporation or minimum of 2 trustees.
7) Power to Postpone Distribution
As stated in s77 PAA, a PR is not bound to distribute the estate of the deceased before the expiration of one year from the death. This means that they can postpone the distribution in order to carry out their duties as a PR.
